the inside story
To create a rule of law counter-structure that opposes the mass incarceration and mass deportation of immigrant communities of color, the Innovation Law Lab is building a multi-year project—the Big Immigration Law Project—that uses a large-scale advocacy infrastructure to create a paradigm shift in immigration policy. The infrastructure, Massive Collaborative Representation, operates at Sites of Resistance—multiple hostile jurisdictions in the United States and every eligible borderland immigrant detention center. It will create normalized mechanisms of release based on the rule of law and legal representation at onward points through final claim adjudication. The infrastructure itself—a collection of collaborative pro bono projects built with and supporting existing nonprofit organizations and private lawyers in the field connected by technology, legal strategy, and capacity-expanding systems—will be durable with an open infrastructure that promotes its use by other organizations developing innovative work in the immigration space who are seeking scale or capacity. In essence, the Big Immigration Law Project creates infrastructure so that every case that should win, does win, every time, everywhere.
The project builds two counter-structures opposing mass expulsion: an organized channel for pro bono representation at designated hostile jurisdictions called the Centers of Excellence and an exponential capacity-expanding unit for existing organizations at detention centers to win release from immigration incarceration called BorderX. The project expands existing volunteer networks: the Center of Excellence provides defined channels of engagement for pro bono attorneys and trained advocates at hostile sites using a fast-scaling model of representation. BorderX organizes trained volunteers to scale up the production of requests for release—bond, parole, or constitutionally required release. Both units use the Massive Collaborative Representation model that has proven to scale rapidly, effectively, and efficiently. Data—about attorneys, judges, prosecutors, clients, and claims—is centrally and ethically aggregated to dynamically adapt the model for maximum client outcomes, to produce public-facing advocacy and scholarly research, and to support litigation by national and regional partners for permanent progressive change.
The Big Immigration Law Project is intended to create a paradigm shift in immigration representation, immigration litigation, and immigration advocacy. For disparate and under-resourced organizations, the project will permanently embed technology as a tool for collaboration. For litigators, social scientists, and policy experts, it creates a massive backdrop of granular data to extract and build other projects, lawsuits, and advocacy campaigns. It demonstrates the power of big data for large scale humanitarian campaigns. It creates new collaborative networks between borderland activists and interior organizations working on protecting rule of law systems for migrants. The infrastructure of the project infrastructure is open so that other organizations can grow themselves by using the project’s systems to build the next wave of innovation.
Disrupting mass detention and deportation requires that we disrupt the vicious cycle of failure at immigration court jurisdictions around the country. People lose immigration and asylum claims for all kinds of reasons. An applicant might be a bad witness. She might be an inaccurate historian. She might not substantively be eligible for asylum or immigration. But our experience has taught us that that is not the case for most claims.
Our experience has taught us that most people lose not because of substantive law – not because of the facts in their cases – but because of the structure of adjudication. In most jurisdictions around the United States, constitutional norms and the rule of law have vanished. U.S. Government actors—immigration courts, prosecutors, and enforcement agents—use subregulatory rules, procedural obstacles, power asymmetries, and opacity to obstruct and ultimately prevent noncitizens, including asylum-seekers, from obtaining fair adjudication of the merits of their claims. Structurally, the U.S. government has nearly limitless power in the deportation & enforcement space and the claim adjudication process sits inside that box. Without a counter-balancing force, every design flaw in the deportation system is magnified in the adjudication process because the deportation system has no incentive to fix adjudications; it works only to increase its own power to deport.
The Centers of Excellence operate as a counter-structure to the deportation system by re-centering the system on constitutional values that obtain fair adjudications, honest adjudications, and correct adjudications. The Centers of Excellence bring together specially trained and supported lawyers, social scientists, and forensic specialists with a two-tiered focus: win every case that can be won and permanently change the adjudication ecosystem through collective legal action.
The Centers of Excellence—presently in existence in Atlanta, Charlotte, Portland, and Kansas City—partner with local non-governmental organizations, private immigration attorneys, non-immigration attorneys, big law, and in-house counsel to represent individuals released from detention through the work of BorderX until final administrative adjudication. Attorneys are organized into a vanguard. The size of the vanguard will normally range from 20 to 40 attorneys. The vanguard attorneys identify themselves as part of the vanguard to create a visible positive force-multiplier. The vanguard is specially trained and supported by the Center of Excellence team. They have access to a special support team— a collaboration between Law Lab staff and staff from the Center for Gender and Refugee Studies of U.C. Hastings and the vulnerable populations project of the Catholic Legal Immigration Network, Inc.—and a curated library of templates and expert declarations.
Vanguard attorneys participate in regular collaborative conferences (generally every two months) where (a) cases are placed with pro bono counsel, (b) individual case strategy is discussed and developed, (c) jurisdiction-wide strategy is discussed and developed, (d) new learning networks among advocates on the ground are built, and (e) the overall health of the adjudication ecosystem is analyzed. In addition, these lawyers manage the cases through a central database maintained by the Law Lab that aggregates substantive information about the claimant and claim as well as transactional information about the immigration court process and the development of the case. At the conference, the lawyers discuss and develop overall goals for the jurisdiction regarding all claims, determine best practices, determine best legal norms, and then discuss strategy for achieving these things. The Center of Excellence team assembles case portfolios for discussion at each collaborative conference. Case portfolios are reviewed and assigned to attorney teams for development and representation. At each conference, the intent is that all the portfolios are assigned to attorney teams – which may be up to 15 cases. Each Center of Excellence creates a strategic plan that would include impact litigation and public-facing advocacy reports.
It is hard to win the release of a noncitizen from a detention site. The legal barriers—rapid removals, asymmetrical power, reduced constitutional protections, pervasive agency bias—are nearly impermeable because of the fixed costs inherent in any jurisdiction-based project and the difficulty of scaling individual representation to achieve symmetries in power. BorderX solves these problems. BorderX uses technology to create mass representation remotely and then seamlessly deliver the fruits to local on the ground partners. BorderX builds the power of the local partner and expands the power of the local partner. A single participating lawyer with a laptop, wifi, and printer could scale her representation at 10X capacity. The 10X factor means that each additional collaborating legal or lay advocate scales representation exponentially. The combinations of organizations on the ground that could join in the fight against mass incarceration expands—say, two lawyers and a paralegal; or, a legally trained priest and a lawyer plus an interpreter; or, an accredited representative, two lawyers, a paralegal, and trained legal lay advocates—because BorderX permits multidimensional scaling so that the of cost representation (in time and fixed costs) drops rapidly and the importance of the physical location of the detention center is marginalized.
BorderX is a collaboration between a local partner working in the field at a site of resistance and the Law Lab. Using the Law Lab’s technology and remote team infrastructure, the local partner and the BorderX team identify, interview, research, file, argue, and appeal (if necessary) every meritorious claim for every detained noncitizen.
The local partner maintains autonomy and is independent of the Law Lab. Using the Law Lab’s case management system (called LawLab), the local partner is trained in the technology and, if necessary, is provided technical and tactical assistance in understanding the law related to release. The local partner identifies and interviews detained noncitizens, collects information through the LawLab platform and orders the production of a release request.
Like Amazon.com, the BorderX team fulfills the local partner’s request. Within a 5 to 21 day period, the BorderX team uses its centrally coordinated remote team to produce a download-and-file turn-key court-ready packet that is supplemented with a guide for orally arguing for the case. Depending on the availability of time, documents and client assets (such as family, community supporters), the BorderX team would deliver release requests that are documentarily sufficient requests for release (bronze), documentarily strong requests for release (silver) or documentarily excellent requests for release (gold). The local partner logs into LawLab, downloads the request for release, reviews it, and files it. The BorderX accompanying strategic guide provides suggestions for the local partner to facilitate oral advocacy before the immigration court, asylum office, or ICE official. Case outcomes are kept in the LawLab system. The local partner stays focused on client-centered interviewing, client preparation and client access. The BorderX team creates the back-end infrastructure. Using a combination of trained staff, volunteer teams, and automation systems, BorderX could reach a throughput of 85 requests a week, up to 4,500 initial requests annually, and up to 4,500 administrative appeals.
Any eligible organization could apply to be a collaborator in BorderX. To be eligible, an organization must (a) be a nonprofit organization or a consortium of individuals working under the umbrella of a fiscal sponsor; (b) provide pro bono representation at an underserved detention site; (c) has a meaningful presence in the local community; (d) has regular access or could organize to fight for regular access to detained noncitizens; (e) employs, organizes, or contracts with individuals who can provide representation by individuals who are supervised by or are themselves bar members in good standing or accredited representatives with a recognized nonprofit in good standing; and (f) carries professional liability insurance.
BorderX currently intends to produce these types of release requests: Requests for Reinterview (for credible fear and reasonable fear proceedings), motions to reopen (for in absentia and reinstatement proceedings), bond motions (for discretionary detention), prolonged detention motions, Joseph motions (challenging mandatory detention), parole requests (for arriving aliens) and appeals to the Board of Immigration Appeals.